Lawrence, Raymond v Australian Workers Union

IN THE FEDERAL COURT

OF AUSTRALIA

)

WESTERN AUSTRALIA DISTRICT REGISTRY	)	WA No. 2 of 1982
INDUSTRIAL DIVISION	1

IN THE MATTER OF the Conciliation . and Arbitration Act 1904

B E T W E E N :

RAYMOND LAWRENCE

Applicant

and

THE AUSTRALIAN WORKERS' UNION

Respondent

CORAM': TOOHEY J.

18 February 1983

REASONS FOR

JUDGMENT

This return of a rule nisi arises from the use

of wide combs in the shearing industry.

Mr. Lawrence, the applicant, is a shearer and has

been a member

of the Australian Workers'

Union, the

respondent, for some 40 years. That union is an organization registered, under the provisions of the Conciliation and Arbitration Act 1904 ("the Act").

Rule 123 of the union's rules reads

"123.

No member shall use a broad gauge

comb and cutter. Members	violating this
Rule shall be fined Forty	Dollars ($40).

The meaning of broad gauge comb shall

be any comb exceeding

2% inches from the

outside of the top tooth to the outside

of the bottom tooth".

The applicant seeks to have that rule declared

invalid pursuant to

9.140 of the Act. To understand

why the application is brought, some reference to facts

and to relevant awards is necessary.

Clause 32 of The Pastoral Industry Award

1965

prohibits a shearer from using

and an employer from

permitting him to use any comb wider than

2% inches

between the points of the outside teeth. The Pastoral

Industry (Roping-In No. 4) Award 1980 applies the provisions

of the Pastoral Industry Award to the respondent and

its

members, and to the Farmers' Union

of W.A. Industrial

Association and the Tasmanian Farmers Federation Employers'

Association and their members in respect

of employment by

members of either assGciation

of members of the respondent,

save only that c1.32 of that award is expressed not to apply to the parties. Similarly, the Pastoral Industry (Roping-In

No. 5 ) Award 1982 applies to the respondent and

i.ts members

and to Metropolitan Saleyard Services

of Western Australia

the Pastoral Industry Award, save for

c1.32.

From what was said by counsel, it appears that the

applicant's employers at the relevant time were

not members

of the Fanners' Union

of W.A. Industrial Association. Hence

they were not parties to the Pastoral Industry (Roping-In

No.

Award. Nevertheless they were bound by the terms of the

Pastoral Industry Award itself, they being successors to

a named respondent to that award. The situation then

was

that the applicant's employment was governed

by the

Pastoral Industry Award including

c1.32 of that award.

3 .

In February 1982 there were before the Australian

Conciliation and Arbitration Commission

two applications,

one by the union and the other by an employer group,

aimed at varying the operation

of c1.32.

As part of

tl;e

hearing of those applications, Mr. Commissioner McXenzie

inspected shearing operations

at several locations throughout

Australia.

One of those inspections was at "Snaigow",

a farm at Narrakine, where the applicant was shearing.

The

Commissioner's decision delivered	10 December 1982 contained
this comment :

"During the course

of the inspections

the Commission observed shearing being

carried out with standard 2-1/2" combs,

pulled standard combs and manufactured

wide combs".

According to Mr. Lawrence, he was not in the practice

of using the wide comb but some time before

25 February he

was told by Mr. Wilkinson, one of his employers, of the proposed visit by Mr. Commissioner McKenzie to Snaigow.

Mr. Wilkinson told him

and other shearers that the purpose

of the inspection was to see the

wide comb in operation

and that he and other shearers	were, on that day, to use
the wide comb.

There was evidence that Mr. Commissioner McKenzie

had earlier stated that

c1.32 of the Pastoral Industry

Award would be "suspended" during each inspection. The evidence of the applicant was that he was told by his

employer that there would be

"no repercussions" if he

used the wide comb on the occasion O E the Commissioner's inspection. Whether on 25 February 1982 the Comissioner

did in fact suspend the operation

of c1.32 (and indeed

4 .

whether he had power to do

so) did not emerge

with any

clarity from the hearing. But it is clear that the

Commissioner did inspect shearing

operations at Snaigow

on 2 5 February, that he took evidence from shearers

working there and that there was a general understanding

on the part of all concerned - union, employees, employers

and Commission - that the shearers were using wide

combs

on that day because of the Commission’s visit and as part

of the evidence presented to the Commissioner in the

applications then before

him. -

Mr. Barr, the Branch Secretary

of the West Australian

Branch of the

union, was present at the time of the inspection.

He did not give oral evidence, but in an affidavit sworn

by him and filed in the proceedings

he spoke of a visit

to Snaigow on 25 February 1982 in the company

of Mr. Commissioner

McKenzie and various employer

and union representatives.

He aeposed to entering

the shearing shed that morning

and

seeing the applicant

and two other members of the union using

wide combs. Paragraph

5 of Mr. Barr’s affidavit reads :

“5. No order for the suspension of

Clause 32 of the Pastoral Industry

Award 1965 was made in my presence-”.

Mr. Barr caused the applicant to be charged under the

union’s rules with a breach of

rule 123.

The. applicant was

notified of the charge and of the intention

of the branch

executive to deal with the matter

on 21 September 1982.

5 .

Although requested

by the union in a letter dated

30 July

1982 to appear before the branch executive

"to show cause,

if desirous of doing

s o , why you should not be

fined",

the applicant did not attend. Through his solicitor, he

did seek an adjournment

of the hearing but the matter

was

dealt with by the branch executive on 21 September. The

applicant was found "guilty as charged" and fined $40.	A
He has not paid that fine.

The action taken by the union

s not directly under

attack in these proceedings, except by reference to rule 123.

What the applicant seeks to

do is to have that

rule declared

invalid and, if successful, argue that any action taken

against him by the mion for an alleged breach

of that rule

can have no l ega l consequences. However I would make two comments about the union's actions fol.lowing the events of

25 February 1982.

The first is that, however laudable the

union's desire to enforce

its rules in general and the

operation of rule 123 in particular, to seize upon the use

of the wide comb

on an isolated occasion as part of an

inspection by a commissioner

of the Conciliation and

Arbitration Commission

was a particularly unhappy choice.

Secondly, rule 98 of the union's rules requires the

branch executive to hear and determine any charge laid

any two members or

by an officer of

the union "if such

charge is made in writing and supported

by a Statutory

Declaratinn setting out the facts . . . l ' .

The document

6 .

provided to the applicant when he was told of the charge

against him

was a declaration by Mr. Barr that reads :

"That on the 25th February, 1982, alleged to have been using Broad

Gauge Combs at the property

known

as "Snaigow" . . .

'I.

In my view a statutory declaration alleging conduct

on the

part of a member

is not a statutory declaration setting

out

out the facts. It is in form and content a complaint

charge. Presumably the requirement of a statutory

declaration is so that the member is provided with some

evidence of what is al-leged against him.	An allegation
is not evidence.

I turn now to the substance of the application.

Rule 123 is said to be invalid on several grounds. In

particular it is alleged

that, the rule being absolute

in 'its terms, it runs counter to the provisions of the

two roping-in awards. It is also claimed that the rule

is calculated to hinder membsrs of the union from giving

evidence before the Commission and that it

calculated to influence them improperly in giving such

evisence. It tends to discourage shearers from carrying out their work in the way they consider best when

permitted by award and it discourages them from joining

or retaining membership of the union when it is the

policy of the Act to encourage that membership.

Section 140(5E) of the Act confers upon the

Federal Court jurisdiction to hear and determine an

application under sub-s.(2).

That sub-section empowers

a member of an organization to apply

to the Court for

an order under the section

in respect of the organization.

Both the jurisdiction of the Court

and its powers are

expressed in somewhat indirect

terms. Section 140(1)

imposes certain criteria, both negative and positive, in

respect of the rules of an organization. Section 140(l)(a),

for instance, provides that rules “shall not be contrary

to, or fail to make a provision

required by, a provision

of this Act, the regulations or an award or otherwise be

contrary to a law”.

Sub-section (5D) provides that an order under the

section may declare that the whole

r part of a’rule of

an organization contravenes sub-s.(l) or that.the rules contravene that sub-section in a specified respect.

Counsel for the respondent submitted that

the

validity of rule 123 should not be judged against “a very fanciful eventuality”, in this case the ad hoc suspension

of the award by the Commission.

I express no view on

that as a general proposition. In some cases, for instance where it is alleged that a rule is contrary to a provision

8 .

of the Act (s.140(1) (a)), it may be necessary to

do no

more than compare the language

of the rule with that of the

Act.	In other cases, for instance where it is alleged

that a rule imposes upon an applicant for membership

or a

member of the union conditions that are

oppressive,

unreasonable or unjust (s.l4O(l)(c)), it may be necessary

to consider in some detail particular circumstances.

In the present case the events of 25 February 1982

do illustrate some

of the problems that may arise

by reason

of the existence of rule 123.

But, in the end, the validity

of the rule stands to be judged	in the light of relevant
award provisions.

Rule 123 is in absolute terms.

Likewise, c1.32

of the Pastoral Industry Award is expressed in absolute terms.

But a conflict arises because, where the application

of that

award is dependent upon either roping-in award, c1.32

excluded.

In those circumstances, there is no award

provision prohibiting the use

of the wide comb. It

cannot therefore be said that rule 123 is in its terms

contrary to a provision

of an award. But it is contrary

in the sense that it prohibits that which the roping-in

awards by implication permit.

Mention should be made

of the fact that on

December 1982 Mr. Commissioner McKenzie delivered

his

decision on the two applications before him. The effect

9 .

t h a t d e c i s i o n

was

t o v a r y c 1 . 3 2 o f

t h e P a s t o r a l

I n d u s t r y

Award

t o p e r m i t u s e

the wide

comb

w i t h t h e e x p r e s s

approval

the

employer

and

vary

the

roping-

awards

d e l e t i n g

r e f e r e n c e

t o

c 1 . 3 2 .

S i n c e

t h e

d e c i s i o n

i s the

sub jec t o f an appea l ,

d o n o t

r e l y

upon

t h e

v a r i a t i o n s e x c e p t t o n o t e t h a t i f t h e y s t a n d t h e s c o p e

fo r conf l i c t be tween ru l e 123 and award p rov i s ions	i s	f u r t h e r
widened.

I f r u l e 1 2 3

was

in t roduced wi th

the

words

“Unless

authorised

award

, . . ‘ l

o r some

such

l anguage ,

t he re

cou ld ,

t h i n k , be

complaint

about

it. But as it

s t a n d s

i s

too b road . -

A n t i c i p a t i n g t h a t s u c h

f ind ing might be

made,

c o u n s e l f o r

t h e r e s p o n d e n t

i n v i t e d

m e

t o d e c l a r e , n o t

t h a t r u l e

123

i n whole

o r i n p a r t c o n t r a v e n e s s u b - s . ( l ) ,

b u t

t h a t

t h e

r u l e s c o n t r a v e n e s u b - s . ( l )

i n

s p e c i f i e d

respect.

T h i s

c o u r s e

was

t aken by Northrop J.

i n

Linehan

Transport

Workers’

Union

Austral

(1981)

.A.S

Cur ren t

Review

570

and

i s

c o u r s e h a v i n g p a r t i c u l a r

consequences.

F o r p r e s e n t p u r p o s e s t h e s t r u c t u r e o f

s.140

may

d e s c r i b e d

i n

t h i s

way.

Once

s e i z e d of

matter

a r i s i n g

u n d e r

t h e ‘ s e c t i o n , t h e C o u r t

may

d e c l a r e

( a )

t h a t

t h e

whole o r a p a r t of a r u l e of

o r g a n i z a t i o n c o n t r a v e n e s

s u b - s . ( l ) , o r

10.

(b)	that the rules of an organization contravene sub-s.(l) in a specified respect.

This dichotomy, expressed

in sub-s.(5D), has these

consequences. Where an order declares that the whole

or a

part of a rule contravenes sub-s. (1) , the rule, in whole

or in part, is deemed to be void from the date of the order

(sub-s.(SG)).

Where an order declares that the

rules

contravene sub-s.(l) in a specified respect,there

is no

statutory avoidance of the rules;

but sub-s.(7) empowers

the Registrar to bring the

rules into conformity with the

declaration if, at the expiration of three months, the

organization has

not itself done so.

As Mason J

. cormented in R. v. Dunphy; ex parte

Maynes (1977-1978

)

139 CLR 4 8 2 at p . 4 9 0

"In many

cases it is a nice question

whether

it is a particular

rule,

rather than the

rules as a whole,

which fails to make a provision

required by the Act or the

regulations".

In the present case only

rule 123 is challenged.

And it is a rule standing independent

of other rules.

A declaration under the second

limb of sub-s.(SD) is

not appropriate. A declpration that the

whole of that

rule contravenes sub-s.(l) is appropriate and I make that

declaration.

In reaching this conclusion I have not relied upon

the other grounds advanced on behalf

of the applicant.

11.

They may be disposed of in this way. If rule

123

conflicts with the provision of an award, it is

unnecessary to look further. If there is no conflict,

the prohibition in the rule is consistent with the

terms of the award and the limitation imposed by the

rule is one that the award, having the imprimatur of

the Conciliation and Arbitration Commission, also imposes.

In those circumstances it is hard to see that the rule itself

could have the implications contended

for by the applicant.

The applicant also seeks an order that the respondent

perform and observe

the rules of the union by treating as

null and void and of

no effect any resolution declaring

that the applicant contravened rule

123 and any fine imposed

thereby. He seeks that order pursuant to s.141 of the Act. The respondent argues that no such order should be made.

It submitted that

by reason of s.l40(5G) of the Act any

declaration that a

rule contravenes sub-s.(l) can operate

only to deem that rule void from the date of the order. It can have no retrospective effect. The submission is

sound to a point but

it does not dispose of.the matter.

In R. v. Commonwealth Industrial Court; ex parte

The Amalgamated Engineering Union, Australian Section (1960)

103 CLR 368 at pp.378-379 Fullagar J. expressed the view

that sub-s.(5G) (the numbering of the sub-sections was in

fact different) does not limit what goes before it. It

12.

operates so that where application

is made under s.140

and an order

obtained, for the purposes of that application

and of that section the

rule is deemed to be void from the

date of the order. If it appears that a

rule offends

s.140(1), that rule will be

void, not by force of an order

made pursuant to sub-s.(5G) but because the rule

offends

sub-s.(l).

I adopt, with respect, the approach of

Fullagar J.. Sub-section (5G) deems a

rule to be void for

all purposes. For this reason, and to avoid rendering

null

actions taken in the past, including actions by those

who

have not participated in the application before the

Court,

sub-s.(5G) gives the Court's order prospective operation

only.

However, that does not preclude the Court or a

tribunal, in appropriate proceedings, from declaring

between a member of an organization and that organization

that a rule

is void because it offends sub-s.(l).

Being

void, it cannot be relied upon

by the organization. See

also Atkinson v. Lamont (1938) St. R. Qd. 33.

But

I do not

think that in these

proceedings

the

Court can

direct the respondent to treat

as of no effect the

resolution of its branch executive holding the applicant

in breach of rule 123 and imposing a fine upon him.

Section 141(1) of the Act empowers a member of an Organization

to apply to the

Court for an order under the section.

13.

Such an order "may give directions for the performance or observance of any of the rules of an organization by

any person

who is under an obligation to perform

observe those rules" (sub-s.

(1G)

) .

On the face of

it there was no failure on the part

of the respondent to perform or observe its rules. Indeed

it purported to act against the applicant for failing

observe rule 123.

It is true that sub-s.(8A) empowers

the Court, in an application under

s.141, to make an

order in terms of s.140. But having made such a declaration it is not apt to regard an order that the respondent treat

rule 123 "as null and Void" as a direction for

the

performance or observance of any of the

rules of the union.

In my view the true position

is that the Court

having declared rule

123 to contravene s.140(1), there is

between the applicant and the respondent a decision that

the rule is

void, and that between the parties an estoppel

results. This

renders nugatory the respondent's action

against the applicant and permits the applicant

to resist

any attempt by the respondent to recover the fine from

him.

a	The applicant has sought an interimeand permanent

injunction restraining the respondent from proceeding	to
hear and determine the charge against him and from

14.

enforcing or proceeding

to enforce any decision arising

therefrom. Before the rule to show cause was granted

on 28 September 1982, the charge had in fact been

determined.

All other questions aside, it was therefore

inappropriate to grant any relief

of an interlocutory

nature in regard to the determination

of the charge.

It is also inappropriate to consider a permanent injunction in that regard. But when the matter came

before me on a directions hearing,

I granted the applicant

an interlocutory injunction restraining the respondent

from seeking to enforce

the decision, that is from

seeking to recover the fine from the applicant.

1: am

now asked by the applicant to make that injunction

permanent.

I was satisfied of the Court's power to grant the

interim injunction sought.	It is enough to point to
sub-s.(lO) of s.140 itself.	That sub-section empowers

the Court at any time after proceedings have been

instituted to make "such interim

orders as it thinks fit

in relation to

a matter to which the matters raised

the proceedings are relevant".

The matter of the validity

of rule 123, raised in the proceedings,

is clearly

relevant to the recovery of a fine based upon

an alleged

infringement of that rule.

The matter of a permanent injunction

is one of more

difficulty. A power to make interim orders to preserve

15.

the status quo and in particular to prevent steps being taken that would render futile any order made by the Court

is a power readily conferred by statute. Section

163,

relating to election

enquiries, is another illustration

within the Conciliation

and Arbitration Act itself.

Counsel for the applicant appealed

to the existence

of the Federal Court as a superior court of record, appearing

to argue that thereby the Court

had all powers conferred upon

a Supreme Court of

Judicature, including the power

to grant

a permanent injunction. That submission overlooks the

decision of the High Court in Thomson Australian Holdings

Pty. Ltd. v. Trade Practices Commission (1981) 5 5 ALJR 614. ..

At p.618, the majority commented

"The Federal Court of Australia Act sets up the Federal Court and arms

it with certain powers,

for example,

ss. 22 and 2 3 .

But generally

speaking, and apart from s.32, the

Act does not invest the Court with

jurisdiction.

It leaves it to

the Parliament to do so by other

statutes (s.19).

This the Parliament

has done by other statutes, such as

the Trade Practices Act. When a

specific statute which

invests the

Court with jurisdiction in matters of a particular class does so in

such a way

as to limit the power of

the Court to grant relief of a

particular kind, there is no basis

for transcending that limitation by

recourse to the general provisions

of the Federal Court of Australia Act"

As I read the judgment of the

Court, it does not detract

from the

operation of s.23 of the Federal Court of Australia Act

1976 as a source of power to grant interlocutory injunctions.

16.

That was the

view taken by Northrop J. in Pirogulu v.

Minister for Immigration and Ethnic Affairs (1981) 4 ALD decision delivered 3 February 1983).

323 at p.324, by Fitzgerald J. in Brisbane Gas Co. Ltd. v.

Hartogen (1982) ATPR 40-304 and which I took in Rifki v.

The power of t.he Court under s.140 of the

Conciliation and Arbitration Act is to make a declaration.

I can find nothing in that Act empowering the Court, in any

relevant context, to grant a permanent injunction. In my

view it is not possible to pray in aid the provisions of

the Federal Court Act itself to fill that hiatus.

It follows

then that no permanent injunction may be granted.

In summary I declare that rule 123 of the respondent's

rules contravenes s.140(1) of the Act. That is the only formal order I make. By reason of s.140(5G) rule 123 is deemed to be void from the date of this order. The

declaration a lso has the'effect as

between the parties of

treating the rule as void at all relevant times.

I certify that this and the fifteen

preceding pages are a -true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey

.4ssociate

18 February 1983

[1983] FCA 422

18 Feb 1983